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Document Type

Article

Abstract

Citizens United v. FEC articulated a pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. It is possible that protection from speaker identity discrimination had long been implicit in free speech case law, but has now been given more full-throated articulation. Or it is possible that the Court has actually introduced a conceptually new free speech doctrine. Either way, Citizens United has the potential to reshape free speech law far beyond the corporate speech and campaign finance contexts. This Article explores the basis of the speaker discrimination doctrine and points to potential implications. It shows that while the speaker discrimination principle had not been previously articulated clearly, it is a convincing explanation for much earlier First Amendment cases and thus should not be understood as an entirely new development. The speaker discrimination principle holds considerable potential to clarify otherwise confused areas of free speech jurisprudence. In particular, the bar against identity discrimination should operate as a limiting principle on forum-based speech restrictions. To illustrate this potential, this Article examines the potential application of speaker discrimination to school speech cases, especially those involving off-campus speech. At the same time, the Court’s embrace of speaker discrimination raises important questions in critical legal theory about why the identity of a speaker might matter in addition to the substance of what a person chooses to say.

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